[26] On May 4, 2011, the date on which the appeal had been originally scheduled to be heard, the trial judge distributed via e-mail her written reasons for her April 8, 2009 ruling. No explanation was offered for the two-year delay in the release of her reasons.
[27] The reasons fill 42 single-spaced pages. They contain a detailed summary of all of the evidence. In the reasons, the trial judge thoroughly examined, compared and parsed the conflicting evidence of the various witnesses. Her reasons focused particularly on the evidence of the two main police witnesses. She summarized and analyzed that evidence at length. The trial judge found that those two officers had perjured themselves in an attempt to create a legal justification for the stop of the vehicle and the search of Mr. Cunningham and Mr. Matthews. In respect of their testimony concerning the decision to stop the vehicle, the trial judge said, at para. 166:
In the end, no matter what the motive or motives may have been for the decision to follow and then stop the defendants, I had no doubt that these officers concocted the version of events upon which they later relied in order to be able to support the constitutionality of the detention and the admission of the evidence at trial.
[28] The trial judge reached an equally damning conclusion in respect of the officers' contention that they searched Cunningham and Matthews out of legitimate safety concerns. She said, at para. 176:
Because of the officers' decision to lie about the circumstances, there was no reliable or credible evidence before me to support an inference that a constellation of facts led to a reasonable concern for the presence of weapons or that the pat-down search was justified by the constellation of facts and the additional information regarding Mr. Matthews.
[29] The thrust and tone of the trial judge's findings in respect of the officers' conduct is found in para. 194:
I was satisfied that the police flagrantly and intentionally violated the defendants' rights under both sections 8 and 9 of the Charter. They then egregiously supported their actions by providing a false account of the events leading up to it. All of this occurred during a time when one of the officers was involved in the completion of the novice officer's training. In the particular circumstances, the evidence obtained by their actions simply could not be admitted.
...
[30] Like Teskey, this is not a case about the adequacy of the trial judge's reasons. It is common ground that the oral comments made by the trial judge on April 8, 2009 do not provide adequate reasons, but that the written reasons released by her on May 4, 2011, if properly considered, are sufficient. However, before turning to the question on which this appeal turns, it is helpful to reiterate the purposes served by reasons for judgment in a criminal case and the various constituencies those reasons serve. In Sheppard Binnie J. observed, at para. 15:
Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render. The courts frequently say that justice must not only be done but must be seen to be done, but critics respond that it is difficult to see how justice can be seen to be done if judges fail to articulate the reasons for their actions. Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts.
[31] Later, Binnie J. added the following, at paras. 24-25:
In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.
The issue before us presupposes that the decision has been appealed. In that context the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision...
[32] In this case, the accused had important constitutional rights at stake. At least two of the police officers had their professional reputations on the line. In addition, the facts gave rise to at least two matters of important public concern, the proliferation of handguns in the city of Toronto and the use of racial profiling by the police. The public, the accused, and the police officer witnesses were entitled to reasons that truly set out the path taken by the trial judge through the conflicting evidence to the result announced in court. The Crown, as the losing party, was also entitled to reasons so that it could properly exercise its rights of appeal.
[33] Teskey instructs the appellate court to look for the requisite link between the decision and the reasons. That search begins from the "presumption of integrity" that reasons provided by the trial judge truly reflect the reasoning process leading to the decision: Teskey at paras. 2-19, 20. That presumption rests on the long and strong tradition of judicial independence and impartiality in Canada: Teskey, per Abella J. in dissent, at para. 33.
[34] The presumption of integrity can only be displaced by "cogent" evidence that would lead a reasonable person to apprehend that the written reasons are not the road map to the decision, but are instead an after-the-fact justification for the decision. That distinction can be hard to discern. Decisions are naturally made before the reasons are fully formulated much less articulated.
[35] Like the apprehension of bias inquiry, the determination of whether the presumption of integrity has been rebutted turns on the perception of the reasonable observer, considering the totality of the circumstances. This approach avoids the impossible task of deciding whether a particular set of reasons in reality describes the actual reasoning path taken by a judge: Teskey at para. 23.
[36] There are several features of this case that convince me that a reasonable observer would not see the written reasons as reflective of the actual reasoning path taken to the decision announced two years earlier. They are:
i. The length of time (25 months) between the ruling and the release of reasons.
ii. The trial judge's responses to the inquiries of counsel concerning the reasons.
iii. The comments made by the trial judge in the course of her ruling.
iv. The trial judge's knowledge that the Crown had launched an appeal and the grounds for that appeal.
v. The nature of the central issues in this case, namely, questions of credibility and findings of fact.
[37] I begin with the length of time between the decision and the reasons. There is no time limit on the delivery of reasons. However, the longer the passage of time between the decision and the reasons for the decision, the greater the concern that the requisite link between the two does not exist. Twenty-five months is a very long time – much longer than the eleven months in Teskey or the eighteen months in R. v. Port Chevrolet Oldsmobile Ltd. (2009), 246 C.C.C. (3d) 355 (B.C.C.A.), the authority primarily relied on by the respondent.
[38] The trial judge's responses to the repeated requests for the reasons also undermine the presumption of integrity. She offers no explanation for the two-year delay save the indication in October 2009 that "unanticipated and extenuating circumstances" had delayed the release of her reasons. In the same correspondence, she indicates they will be available at the end of the week. In fact, they were not available for over a year and a half.
[39] The trial judge not only offered no explanation for the delay, but also repeatedly, personally and through her assistant, advised counsel that the reasons would be available within a few days. While the failure to produce reasons within "a few days" as promised could be excused as undue judicial optimism, that explanation wears thin after the third or fourth time that the reasons are not forthcoming as promised. The inescapable reality is that the counsel received inaccurate information several times as to the availability of the reasons for judgment. Counsel were led to believe throughout the entire two-year time period that the reasons were only a matter of hours or days away.
[40] The comments made by the trial judge at the time she rendered her decision in April 2009 are also pertinent to the reasonable observer's determination of whether the written reasons eventually provided were linked to the decision made. From one perspective, the trial judge's comments in April 2009 support the existence of that link. Those comments provide a clear statement of the trial judge's "bottom line" on the various issues raised on the voir dire. There is no reason to doubt that her "bottom line" assessment was anything other than the product of a careful and honest consideration of the evidence and arguments. It is implicit in that "bottom line" that the trial judge rejected the police officers' evidence and that she regarded their conduct as sufficiently blameworthy to justify the exclusion of reliable and crucial evidence in a serious criminal case.
[41] Although one can readily infer in broad terms the essential credibility findings made by the trial judge from her oral comments, those comments offer no insight as to the basis upon which she reached those findings. This is not a case where the subsequent written reasons can be seen as supplementary to the briefer oral reasons given at the time the decision was announced. The absence of any analysis in the brief oral comments makes it more difficult to draw any connection between the decision and the ultimate reasons.
[42] A further aspect of the trial judge's oral comments is significant in considering whether the subsequent written reasons can be considered as proper reasons for judgment. In her brief oral comments, the trial judge indicated that her written reasons were complete as of the announcement of her decision and would be available that same day. Those comments cannot reasonably be read as indicating, as the trial judge suggested in her written reasons two years later (at para. 195), that the reasons would follow in the future. The trial judge's comments could only reasonably be understood as a representation that the reasons for judgment existed as of the time she gave her decision.
[43] In so holding, I would reject the suggestion that her comments could be understood as an indication that the reasons were substantially prepared, but needed some final finishing touches. Certainly, the two-year passage of time before the reasons were available, the language used in the reasons (see, for example, para. 195) and the absence of any explanation for the long delay support the inference that the written reasons were crafted entirely sometime after, and probably some considerable time after, the announcement of the decision. Reasons that are produced entirely after the fact can be the product, albeit subconsciously, of a result-driven reasoning process aimed at defending the decision announced rather than explaining the process that led to the decision: Teskey at para. 18.
[44] In the absence of any explanation, and having regard to the subsequent events chronicled above, I think a reasonable person would conclude that one of two things happened in this case. Either the trial judge inaccurately represented the existence of the reasons on April 9, 2009; or the reasons existed, but for some unknown reason the trial judge did not release those reasons, but eventually prepared a new set of reasons that were released two years later. Either possibility goes a long way to undermining the presumption of integrity described in Teskey.
[45] The trial judge's knowledge that the Crown had appealed her decision and was alleging that her oral reasons were inadequate is also an important factor in determining whether a reasonable observer would see the necessary link between the decision and reasons. The risk that reasons delivered long after a decision are more in the nature of an after-the-fact defence of that decision than a description of the path taken to it is particularly acute where, to the judge's knowledge, an appeal has been launched in which the adequacy of the reasons is challenged.
[46] The trial judge was aware of the Crown appeal shortly after it was launched. More significantly, she knew in February 2011 that the Crown appeal was going forward on the basis that her brief oral comments did not constitute reasons for judgment and that the appeal should be allowed on that ground. Within three months of receiving that information and on the very day the appeal had been scheduled to be heard, the trial judge delivered her lengthy detailed reasons which, if properly taken into account, fully answered the Crown's appeal.
[47] The mere fact that a trial judge is aware that an appeal has been launched when he or she delivers reasons for judgment does not mean that those reasons cannot be considered. As with other considerations, the existence of an appeal and the trial judge's knowledge of that appeal are but factors to be taken into account. In my view, however, a reasonable observer would, in the circumstances of this case, see the lengthy reasons delivered by the trial judge as motivated, at least in part, by the very natural desire to defend her decision against the specific challenge made by the Crown on appeal. That motivation, even if it operated entirely on a subconscious level, would lead to reasons that sought to justify the decision challenged on appeal rather than reveal the reasoning that led to the decision.
[48] Finally, the nature of the issues that had to be resolved on this Charter motion provides a further reason to doubt whether the written reasons are truly reflective of the trial judge's reasoning process. The Charter motion turned on findings of fact. Those findings required difficult credibility assessments that could only be made after a careful appraisal of conflicting, confusing and voluminous evidence. Proper reasons for judgment had to demonstrate a full appreciation and consideration of that evidence. It is very difficult for reasons prepared and delivered long after the decision to properly perform that function. Setting aside the ability to recall, months or years after-the-fact, features of the evidence that were relevant to credibility assessments, there is a real danger that, having publicly announced one's "bottom line" with respect to credibility assessments, the reasons will be written with a view to defending that conclusion rather than explaining the process that led to it: Teskey at para. 23.
[49] This is not a case like R. v. Port Chevrolet Oldsmobile Ltd. where the facts were not in dispute and the case turned on the application of legal principles to those facts: see paras. 59-60. In that kind of case, the risk that reasons delivered long after the fact do not reflect the reasoning process is significantly reduced.
[50] Though none of the factors discussed above is determinative, in combination they rebut the presumption that the written reasons truly reflect the reasoning process that led to the decision on the Charter motion. A reasonable observer would in the words of Teskey "apprehend that the written reasons are in effect an after-the-fact justification for the verdicts rather than an articulation of the reasoning that led to the decision": para. 23.
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